Monthly Archive for September, 2011

For-Profit Colleges Facing Federal Scrutiny

For-profit colleges have been in the news quite a bit recently. As the name implies, these are educational institutions operated by private companies for the express purpose of earning a profit. Most private colleges and universities operate on a non-profit basis. And, as far as I know, so does every public educational institution.

However, like most educational institutions, the students at most for-profit colleges are eligible for federal student loans, as well as educational financial assistance that’s made available to military veterans.

However, because these colleges need to make a profit to stay in business, rather than relying on public funds, private donations, and endowments, many critics have raised concerns that they seriously compromise educational quality in the name of profits, and aggressively recruit students, regardless of the job prospects they’ll have when they graduate.

This can leave students saddled with tens of thousands of dollars in non-dischargeable (meaning it can’t be eliminated or restructured in bankruptcy) student loan debt, with job prospects that were no better than they were before they attended school.

In some cases, this has led to lawsuits against the schools by former students. One of the biggest sectors of the for-profit educational industry is culinary school. Across the United States, there are a large number of for-profit culinary academies. Several culinary colleges, such as the California Culinary Academy, are being sued by former students, who are claiming that they were misled about their job prospects, and the reputation of the school.

One of the most controversial practices engaged in by for-profit colleges is the way in which they recruit former military service members. Under the laws governing federal student loans, for-profit colleges are bound by the so-called “90-10 rule.” This means that at least 10% of the tuition they receive must come from sources other than federal student loans and grants, such as private loans, or from the student simply paying out-of-pocket, and the other 90% can come from federal loans and grants. If the college fails to meet this standard, its students become ineligible for federal student loans, which make up the vast majority of the college’s income.

However, there’s a loophole in this law: educational funds given to members of the military in the form of the G.I. Bill count towards that 10%. So, for every former soldier they enroll with tuition paid for via the G.I. Bill, they can enroll 9 civilian students who can pay with student loans.

This gives them a very strong incentive to heavily market to former soldiers, and get them to enroll regardless of their future job prospects, or even their ability to complete the coursework. For example, there have been cases where they signed up combat veterans who were still recovering from fairly severe brain injuries, as well as mental illnesses such as post-traumatic stress disorder. Some of these students couldn’t even remember what classes they were signed up for. But it appeared that the school didn’t care that they were getting nothing out of their “educational” experience, as long as their tuition checks (paid for by Uncle Sam) cleared.

Not surprisingly, graduates of for-profit colleges tend to default on their student loans at higher rates than other colleges and universities. And because most student loans are paid for by the federal government, it’s the taxpayers who are ultimately on the hook for these loans.

These problems, and the fact that they disproportionately affect students at for-profit colleges, have led to the federal government taking action. The Obama Administration has announced that the Department of Education is instituting a so-called “gainful employment rule” that applies to for-profit colleges receiving federal student loans. Essentially, the rule would require for-profit colleges to meet at least one of three requirements:

  1. At least 35 percent of graduates are actively paying down their loans – lowering the total balance by at least one dollar per year.
  2. Graduates, on average, spend less than 30 percent of their discretionary income on paying down their student loans.
  3. Graduates, on average, are spending less than 12 percent of their total income paying down their loans.

For-profit colleges would only have to meet one of these requirements to maintain eligibility for federal loans. A program that cannot meet any of them will lose this eligibility, effectively shutting it down.

Federal officials estimate that, once these rules are implemented, about 5 percent of for-profit programs will be shut down.

These requirements seem pretty reasonable, and any college that is unable to meet them probably shouldn’t be receiving federal funds. Most for-profit colleges are already responding to these rules by becoming more selective in their admissions (which should lead to smaller class sizes, and a student body that’s more qualified to be in college in the first place), and providing more accurate information about a graduate’s likely employment prospects, and information on avoiding excessive debt.

Hopefully, these new rules will improve the overall quality of for-profit colleges, and the education they provide. Despite their problems, these institutions can fill a valuable niche in the educational market, especially since they largely focus on vocational training that more traditional universities often ignore. However, we shouldn’t allow them to engage in deceptive recruitment practices or saddle the vast majority of their graduates with debts that they cannot hope to pay off.

While the gainful employment rule might be disruptive to some for-profit colleges, I think that, in the long run, it will improve the quality of the education they offer.

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Judges Experimenting with Less Punitive Approach in Juvenile Cases

During a recent debate between several candidates vying for the Republican presidential nomination, the moderator asked a question about the death penalty. When he pointed out that Texas Governor Rick Perry had presided over a very large number of executions, the audience burst into spontaneous applause.

Although public support for the death penalty is (very slowly) declining, a solid majority of Americans still support capital punishment. I’m going to go ahead and give the audience members the benefit of the doubt, and assume that they were not cheering out of bloodlust, but a belief that these executions represent a triumph of good over evil, law and order over criminality.

Anyway, most Americans consider themselves “law and order” types: in general, we believe that criminals should be punished, and punished harshly. We also pride ourselves on having a fair legal system, which gives most criminals at least one chance to prove that they’ve been rehabilitated.

However, the United States still has a fairly high recidivism rate for major criminals.

This fact has led to some judges experimenting with less punitive ways of dealing with crime, focusing instead on rehabilitation. This is becoming especially appealing when dealing with juvenile offenders, because most experts think that, the younger an offender is, the better their chances of being rehabilitated, if a serious effort is made.

The chief judge of New York State is seeking to completely overhaul the juvenile justice system for exactly that reason. The proposal involves transferring the jurisdiction over cases involving less serious crimes committed by teenagers to the state’s family court system. Unlike the criminal justice system, civil courts (including family law courts) usually have a much wider range of options when it comes to dealing with remedying legal wrongs that have been committed. His plan would make sure that more serious and violent offenders continue to be prosecuted as adults.

I’ve said before that the penal system, especially with respect to how it handles juvenile offenders, needs to be reformed.

The criminal justice system has, for generations, focused largely on punishment. This may appeal to our baser natures, but it may not be the most effective means of preventing crime. For example, after police arrested the perpetrator of the tragic bombing and mass shooting in Norway last July, news reports quickly began to gravitate towards the punishment that he is likely to face. They reported that many prisons in Norway resemble summer camps and college dorms more than correctional facilities. In the United States, and many other countries with more “traditional” prison systems, people who learned about this expressed confusion and outrage. This was compounded by the fact that Norway doesn’t even have life imprisonment as an option, let alone the death penalty. However, prison authorities do have the option to keep someone locked away indefinitely, if they’re deemed to still pose a threat to society, with reviews conducted every few years to make that determination.

However, Norway has a recidivism rate that’s far, far lower than that of the United States, with far fewer criminals re-offending after they’re released, despite the fact that their prisons seem luxurious by our standards.

This is largely believed to be caused by the fact that Norway’s prison system focuses heavily on rehabilitation, investing in psychological treatment and job training. Obviously, if the underlying cause of a person’s crime was mental illness and/or financial desperation (as is often the case), both of these measures would prevent people from re-offending.

While it may not have the same emotional appeal as punishing criminals just for the sake of punishing them, it seems to be better for society.

Adopting a similar system in the United States, quite frankly, isn’t going to happen anytime soon. First of all, the vast majority of criminal justice functions are handled by individual states. And while there are basic constitutional standards that, in theory, govern prison conditions, there’s a huge variation between individual states in philosophies about how criminals should be treated.

However, I think we should all be able to agree that juvenile offenders, should, with a few exceptions for the most violent and obviously-incorrigible offenders, be rehabilitated as opposed to simply locked away and forgotten.

However, a single judge in New York cannot do this alone. While he may be able to help set up a pilot program, to prove to policymakers that such a system can work, it will ultimately be up to state legislatures to create such a system, and, just as importantly, to fund it.

But with government budgets being cut across the board, it’s unlikely that wholesale reform of our juvenile justice system is likely to happen anytime soon.

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Top Five Most Common Personal Injury Claims

America has always, always been cast as being an overly-litigious society, meaning that we are lawsuit happy.  In some ways, it’s true- a new lawsuit is supposedly born every 2 seconds in the U.S.A.  On the other hand, I believe that there are some circumstances where filing a lawsuit is really the most efficient way a person can be compensated for their losses.

A good example of this is when it comes to personal injury claims.  Calculating the damages for property damage is relatively easy- you just simply compare market values.  But when the damage is to a person’s own body, it can be difficult to tell exactly how much they have lost.  This is especially true when trying to factor in the effects of a personal injury, like lost wages or future loss of earning capacity.

In such cases, legal expertise may be needed to determine whether a person should be compensated, and by how much.  In attempts to help us understand personal injury claims more, here is a list of the top five most common personal injury claims and some background on their causes:

#5: Products Liability claims

Products liability injuries account for about 7% of all personal injury cases.  There are an estimated 20,000 products liability claims being filed each year.  People are bound to get injured due to the sheer number of products out there- products liability claims can involve anything from unsafe medical devices to faulty toys and even some pet products.

Also, products liability cases have the second-highest median (about $300,000) when it comes to damages awards. Only medical malpractice cases have a higher median for damages awards.  In my opinion some people file products liability claims because they know that manufacturers tend to be where the “deep pockets” are.  A common example of this is with the recent resurgence of big tobacco cases involving multi-million dollar, borderline excessive punitive damages awards.

#4: Slip and Fall claims

The National Safety Council reports that in 2007, slip and fall accidents accounted for the death of over 20,000 Americans, and contributed to over 7 million injuries.  One of the reasons why this one is so common is that it can happen just about anywhere- the supermarket, the mall, at work, even at home.  Also, the older a person is, the more susceptible they become to a slip and fall-type injury.  Slip and falls can be especially damaging to the spine, neck, head, or hips.

But, proving a slip and fall claim can sometimes be more difficult than for other personal injuries.  It usually involves a combination of negligence and premises liability theories- you’d have to prove that the owner of the premises somehow failed to remedy a dangerous condition such as a slippery floor.

#3: Assault claims

Though technically included under both tort and criminal law, assault claims still account for great number of bodily injury claims each year.  And even though many feel that violent crime is declining, we are still seeing an incredibly high amount of assaults every year- the Bureau of Justice recorded over 2 million simple assault cases in 2010 alone.

Again, these types of personal injury claims are so common because they are widespread.  They often happen in conjunction with other issues, such as domestic violence and alcohol abuse.  Assault injuries are unique in that they often include a claim for emotional distress as well as physical injury.

#2: Work-Related injuries

Despite “today’s economy” and the unemployment rates, work-related injuries are still near the top of this list.  The Bureau of Labor Statistics recorded over 3 million non-fatal work-related injuries in 2009 and almost 5,000 fatal work injuries in 2010.  Work-related injuries tend to involve repetitive stress injuries such as back injuries from lifting, neck injuries from reading, and carpal tunnel syndrome from typing too much.

One thing about work-related injuries is that many of them go unreported for fear of being fired or appearing too “needy”.  This means that figures may be even higher than we suspect.  In some cases this fear is understandable, given the current drought of work.  But, if you do have a legitimate need, don’t be afraid to bring it up with your boss.

#1: Road Traffic accidents

On average, there can be over 6 million car accidents yearly in the U.S.  These may include injuries to drivers as well as bicyclists and pedestrians.  Again, part of the cause is that we simply spend a great deal of time in our cars rather than walking.

It appears that road traffic injuries may be on the rise on account of more distractions, namely, smart phone usage while driving.  To those who currently have a smartphone-addiction and must drive, exercise some restraint and quarantine your phone in some unreachable spot.  Your notifications can wait until you reach your wi-fi enabled destination.

Conclusion

In my opinion, personal injury lawyers tend to have a bad rep due to the amount of unscrupulous lawsuits that are filed each year.  While I believe that the court system exists to help us, that doesn’t mean that we can file frivolous lawsuits or abuse the system.  Pretending you are injured is not a legitimate source of alternative income.  And of course, abusing the legal system can even have criminal consequences.

So while it is ok to seek legal recourse for personal injuries, just make sure that you use common sense and stay within the bounds permitted by law.  And keep an eye on those filing deadlines!

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Violent Crime is Declining, and Nobody Knows Why

Over a year after emerging from the worst recession in a generation, the United States economy continues to be sluggish, and teeters on the edge of falling into another recession. Despite healthy corporate profits, and private companies sitting on the largest cash reserves they’ve ever had in history, nobody seems to be hiring. The unemployment rate stubbornly refuses to drop below 9%. Just about every reputable economist seems to think that we might as well get used to this, because even in a best-case scenario, things aren’t going to get much better for at least a few years.

The state of political discourse seems to have deteriorated beyond repair, with violent, vitriolic rhetoric directed at one’s political opponents now commonplace. Washington seems unable and/or unwilling to take any real steps to try and turn things around, focused instead on partisan bickering, and playing games of chicken with crucial matters such as the debt ceiling

People are angry and frustrated. And to make matters worse, nobody seems to know where to direct all this anger. A history student reading this blog post decades from now (the state of history education sure has declined, hasn’t it?) would probably assume that all of this should be accompanied by riots in the street, along with skyrocketing rates of violent and property crime.

But here’s the thing: that hasn’t happened, and nobody has any clue why. In fact, violent crime has been in decline since it peaked in the early 1990s, and the decline from 2009 to 2010 has been particularly notable. Violent crime decreased 13% between 2009 and 2010. This includes crimes that one would expect to increase dramatically during an economic downturn, such as robbery, burglary, and theft.

But even property crimes are down, though to a lesser extent than violent crime.

Many criminologists and sociologists are working hard to figure out why, exactly, this is happening. If it’s the result of some combination of public policies, we obviously want to know what they are, so we can be sure to replicate them.

There are many competing theories about why crime rates are down. One of the simplest is that maybe crime rates don’t correlate with the economy as closely as we’ve previously assumed.

However, a few years ago, one economist offered another extremely fascinating theory, which was extremely controversial for reasons that will soon be obvious. This economist argues that the Supreme Court case of Roe v. Wade, which legalized abortion in the United States, is responsible for reducing the crime rate. Roe was decided in 1973, at which time, the number of abortions performed in the United States increased significantly.

What does this have to with crime rates 20 years later? Well, violent crime began to decline in the early 1990s. This is when children born in the early 70s (when Roe was decided) would be entering young adulthood, which is when most criminals begin their life of crime. Children born into high-crime communities to parents who don’t want them are very likely to turn to crime themselves. It also happens that those pregnancies are the most likely to end in abortion.

So, the theory goes, a significant portion of the generation of potential criminals that would have come of age in the early 90s was never born, as a result of Roe v. Wade. And as the years went on, the effects have simply become more visible, as the number of children born into environments that bread criminality continued to decline. Obviously, this theory has proven extremely controversial, but it is very compelling.

Another idea that some have put forth is that improvements in our ability to diagnose and treat mental illness over the last few decades have made it easier to address behavioral problems shortly after they appear in children. Obviously, if mental illness can be detected and addressed earlier, it’s far less likely to manifest in the form of destructive or antisocial behavior.

And others are arguing that the fact that we are incarcerating more people than just about any country in history has something to do with lower crime rates. It makes perfect intuitive sense that locking up criminals is going to decrease violent crime.

Personally, I think it’s probably a combination of all of these things. Or maybe it’s something that nobody has even considered.

Whatever the cause, it’s very important that we figure out exactly what’s going on. It’s wonderful that crime has continued to decrease for all these years, and if we want to enact policies to ensure that this trend continues, and that crime rates don’t start increasing again, it would be good to know what policies, or other social conditions, are causing crime to decrease.

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Increase in Bullying Awareness Leads to Increase in Litigation over Bullying

I’ve written before about bullying and the law before, generally in the context of knee-jerk criminalization of conduct, which modern society so often sees as a way to deal with (or convince themselves that they’ve dealt with) a major social problem. Usually, the criminalized conduct is bad, and should be strongly discouraged. However, I often can’t help but come to the conclusion that using criminal law as the go-to solution is often counter-productive.

While I recognize that bullying of children and adolescents, especially when it’s motivated by the victim’s actual or perceived sexual orientation (which can already be a significant source of confusion and insecurity for many young people), is a huge problem, I question whether criminal law is the best way to deal with it.

However, I do think that the civil justice system is sometimes a good way to deal with these problems, because judges have more flexibility in crafting remedies, and it’s easier to hold accountable those who are ultimately responsible. After all, criminal law allows the individual bullies to be punished, but it’s highly ineffective at addressing the root of the problem: a culture in public schools that allows bullying to thrive.

An article in USA Today notes that civil lawsuits regarding bullying are on the rise.

This is due, in large part, to a greater awareness of the problem of bullying, and the long-term psychological impact it can have on children and adolescents. I’m sure there are some people who are using the recent media attention to the bullying problem as a way to try and cash in on the latest “lawsuit lottery,” but the extent of this phenomenon tends to be overblown, and it is, in fact, very rare. And most lawsuits that are filed by people hoping for nothing more than a quick payday don’t make it very far.

These lawsuits (properly, I believe) are largely directed against the schools where the bullying takes place.

It seems that many public schools still don’t know how to deal with the problem. And while they may have “zero-tolerance” polices about bullying on the books, they are sometimes not enforced, and teachers have little training on how to deal with the problem.

While criminally punishing bullies might be a slight deterrence, providing schools with an incentive (avoiding costly lawsuits) to really address the problem would probably prove far more effective in the long run. This is due in large part to the fact that judges in civil cases have more flexibility in redressing legal wrongs.

By suing schools for failing to take adequate measures to prevent bullying, plaintiffs can strongly incentivize schools to take appropriate measures, simply to avoid lawsuits. Furthermore, courts can impose injunctions, compelling schools to take specific steps to prevent bullying.

This has the potential to be particularly effective when you consider the relatively recent development of the so-called “structural injunction.” This is a court order that compels a public entity (such as a public school) to significantly change the way it operates. For example, court-ordered school desegregation is a structural injunction. It’s not hard to imagine that state or federal courts, if under sufficient pressure, might start imposing structural injunctions requiring schools to take concrete steps to address the problem of bullying, including training staff on how to spot the problem, and disciplining school employees who choose to look the other way.

Obviously, this puts a court in a somewhat awkward situation of directly overseeing the operations of a non-judicial public entity. Courts are not perfectly suited to this task and, historically, it’s not what the court system was designed for. However, if you look at the purpose of the court system, at its most basic level, it makes sense: the court system exists to ensure that legal wrongs have a legal remedy.

In that context, overseeing reforms to address bullying in public schools is part of a court’s purview.

Obviously, I don’t think that lawsuits, per se, are a good thing. They’re often costly and time-consuming. However, I do recognize that they are sometimes a good way (if not the only way) to address a problem in a public institution. This is especially the case when state legislatures refuse to act, or, worse yet, “act” by passing an ill-conceived criminal statute that will do little to address the problem, rather than taking effective, but more difficult steps that might involve things like properly funding schools so that teachers can be properly trained in dealing with bullying.

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